Citation Nr: 0001883
Decision Date: 01/24/00 Archive Date: 02/02/00
DOCKET NO. 97-12 604 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Entitlement to secondary service connection for left hip
replacement.
2. Entitlement to secondary service connection for
alcoholism.
3. Entitlement to an increased evaluation for post-traumatic
stress disorder (PTSD), currently evaluated as 10 percent
disabling.
REPRESENTATION
Appellant represented by: New York Division of Veterans'
Affairs
ATTORNEY FOR THE BOARD
Grace Jivens-McRae, Counsel
INTRODUCTION
The veteran served on active duty from January 1968 to
December 1969. This appeal arises from a February 1996
rating decision of the Buffalo, New York, Department of
Veterans Affairs (VA) Regional Office (RO), which denied
service connection for a left hip replacement secondary to
the veteran's service-connected shrapnel of the left thigh;
found that there was no clear and unmistakable error in the
February 1992 rating decision which denied service connection
for aseptic necrosis of the left femoral head; denied an
increased evaluation for PTSD; and found that the claim for
service connection for alcoholism secondary to the veteran's
service-connected PTSD, was not well-grounded.
In the veteran's February 1997 substantive appeal (SA), he
withdrew his claim asserting clear and unmistakable error in
a February 1992 rating decision denying service connection
for aseptic necrosis. Therefore, that issue is not before
the Board of Veterans' Appeals (Board) and is not reflected
on the title page.
Although the RO apparently denied service connection for
aseptic necrosis of the left femoral head in a February 1992
rating decision, the notice letter to the veteran dated later
that month did not mention the denial. Accordingly, the
Board is considering the current claim for service connection
for left hip replacement on a de novo basis, rather than as
an attempt to reopen the claim by the submission of new and
material evidence.
FINDINGS OF FACT
1. The veteran's claim that he had a left hip replacement as
a result of his service-connected residuals of shrapnel
wounds of the left thigh is not accompanied by medical
evidence to support that allegation.
2. The claim for service connection for a left hip
replacement secondary to the veteran's service-connected
residuals of shrapnel wounds of the left thigh is not
plausible.
3. The veteran filed a claim for service connection for
alcoholism secondary to his service-connected PTSD after
October 31, 1990.
4. The veteran's PTSD is productive of no more than mild
disablement.
CONCLUSIONS OF LAW
1. The veteran's claim for service connection for a left hip
replacement secondary to his service-connected residuals of
shrapnel wounds of the left thigh is not well grounded.
38 U.S.C.A. § 5107(a) (West 1991).
2. Service connection for alcohol abuse secondary to the
veteran's service-connected PTSD is not warranted. 38 C.F.R.
§ 3.301(a) (1999); VAOPGCPREC 2-97.
3. The criteria for an evaluation in excess of 10 percent
for service-connected PTSD are not met. 38 U.S.C.A. §§ 1155,
5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.129, 4.130
Diagnostic Code 9411 (before and after November 1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
The veteran served on active duty from January 1968 to
December 1969. He sustained booby-trap injuries in
October 1968, specifically to the left knee, left thigh and
left transverse colon. By rating decision of March 1970,
service connection was granted for, amongst other
disabilities, sequela laceration of the left knee and thigh.
A noncompensable evaluation was assigned.
The veteran underwent VA examination in July 1984. At the
time of the examination, it was indicated that the veteran
suffered a left thigh laceration as a result of a shell
fragment wound suffered in service. He related that the
scars of the left thigh did not cause him any symptoms.
Physical examination of the left thigh revealed two scars
each measuring about the size of a silver dollar on the
lateral upper aspect of the left thigh. They were well-
healed and non-tender without any accompanying muscle defect.
No functional impairment was noted. The pertinent diagnosis
was scars of the left thigh, asymptomatic.
By rating decision of August 1987, service connection was
granted for PTSD. A 10 percent evaluation was granted,
effective February 1987. The 10 percent evaluation remains
in effect to this date.
In July 1991, the veteran was seen in the VA orthopedic
clinic. He complained of left hip discomfort. He had a
private x-ray which showed some shrapnel present. Clinical
examination revealed the veteran walked with a cane in his
left hand instead of his right. He had very definite loss of
motion in his left hip in all planes, particularly rotation
and abduction. X-rays showed some small fragments of
shrapnel about the joint but had absolutely not involved the
joint itself. In the femoral head there was an area of
aseptic necrosis.
In September 1991, the veteran underwent VA examination. The
veteran gave a history of sustaining shrapnel wounds in the
left thigh while in Vietnam. Three to four years prior to
the examination, he began to notice some pain and discomfort
in the left hip which did not become severe until the spring
of 1991. He was diagnosed by VA as having aseptic necrosis
of the left femoral head. X-rays were showing a partial area
of necrosis in the head and the soft tissue surrounding, but
not involving the hip joint proper were small non-reactive
imbedded shrapnel fragments. The veteran was on underarm
crutches which he placed on the floor with the left foot with
no weight bearing. Laterally, in the mid thigh area was a
flat smooth irregular circular shaped scar measuring 1 inch
in diameter. There was a similar scar just proximal to the
left hip greater trochanter confined to the skin which
measured 1/2 inch across the greater diameter. The scar was
not tender and there was no significant involvement of the
underlying tissues. There was no actual limitation of
movement of the left hip, but all hip movements were
increasingly painful as they progressed. The pertinent
diagnosis was residuals of old shrapnel wounds in the left
lateral hip and lateral left thigh area with scars with
retained soft tissue fragments.
In October 1991, a letter from the veteran's mother was
received by VA on behalf of the veteran's claim. She stated,
in pertinent part, that the veteran was hurt in service and
had retained shrapnel in his system.
In November 1991, the veteran underwent VA examination.
Medical history noted that the veteran had shrapnel in his
left thigh which was removed. His most recent problem was
complaints of hip pain. Diagnosis by VA examiner showed
septic necrosis of the left femoral head. The rest of his
joints were normal. The veteran had a few soft tissue
densities consistent with progressive increase in pain in the
left hip. He walked with a cane. Physical examination
showed healed scars where he had shrapnel removed from the
left lateral thigh. He had pain on range of motion in the
hip in all directions. It was noted that the veteran walked
with a definite limp and used crutches on the left side. The
diagnostic impression was history of possible septic necrosis
of the left hip. The examiner stated that in his limited
expertise of the hip, the question was whether or not the hip
disability was related to the veteran's shrapnel wounds.
In July 1994, the veteran was hospitalized at Robert Packer
Hospital for a painful left hip. It was noted that the
veteran sustained an injury to the left hip during the
Vietnam War when he was hit with shrapnel. He reported
discomfort in the hip since that time but the pain became
especially severe in 1991. Preadmission x-rays revealed
avascular necrosis of the left hip. He was scheduled for a
left total hip arthroplasty. Physical examination of the
left hip revealed flexion of 90 degrees, flexion contracture
of 30 degrees, and external rotation of 10 degrees. The
pertinent discharge diagnosis was aseptic necrosis of the
left hip with secondary osteoarthritis of the left hip.
In July 1995, the veteran was seen in the Guthrie orthopedic
clinic. It was noted that he had undergone a left total
arthroplasty for treatment for aseptic necrosis and secondary
osteoarthritis. He reported pain in the left hip and back.
Physical examination revealed he walked without a limp.
Range of motion of the left hip revealed flexion of
100 degrees, flexion contracture of 0 degrees, external
rotation of 40 degrees, internal rotation of 20 degrees,
abduction of 40 degrees, and adduction of 30 degrees. X-rays
of the hip showed no evidence of loosening. Good position of
the acetabular and femoral components was noted. The
examiner stated that he suspected that the veteran's symptoms
may be a sciatic-type discomfort. He also had elements of
what appeared to be a trochanter bursitis.
In December 1995, VA received a Readjustment Counseling
Service Contract Initial Assessment Form, dated in
March 1995. The veteran was noted to have current symptoms
at that time of recurrent nightmares, intrusive thoughts and
recollections, feelings as if the event was reoccurring,
numbing of responsiveness, reduced interest in activities of
former interest, isolation and distancing from family or
peers, emotional numbness, hyperalertness and startle
response, sleep disturbance, memory impairment and trouble
concentrating, avoidance of situations, depression, past
substance abuse, anger and rage, and low self esteem. The
counselor noted the veteran's affect was constricted and
insight was fair. Motivation was good, behavior was
cooperative, his mood was agitated and he was depressed. The
counselor's assessment revealed that the veteran had lived a
withdrawn life, sometimes in the extreme in relation to
intrusive symptoms of PTSD. A treatment plan was
established.
In February 1999, the veteran underwent a VA psychiatric
examination. When asked to describe the nature of his
problems, the veteran was fairly vague and had to be directed
as to what he called PTSD. He stated that sometimes he had
flashbacks from Vietnam when he heard a helicopter. When he
had flashbacks, he felt frightened and nervous. At that
time, he sometimes broke out in sweats. He related dreaming
about Vietnam twice a week and he was awakened by the dreams.
He denied psychiatric treatments or hospitalizations in the
past. He reported that other than periods of flashbacks and
sleep disturbances, there was "nothing else I can think of
that is a problem." Mental status examination found the
veteran to be pleasant, alert, calm and cooperative with
clear sensorium and minimal evidence of anxiety while talking
about Vietnam. He gave no history of panic episodes and
denied experiences of auditory or visual hallucinations. He
manifested no ideas of reference or delusional thinking. His
behavior during the interview was appropriate and he
ambulated with a cane. He denied any periods of suicidal or
homicidal thoughts or anger. He was able to take care of his
trailer and his personal needs. He stated that he had a
girlfriend. His recent and remote memory was intact with
good immediate recall. He did not present with any obsessive
features. His speech was relevant, coherent and appropriate,
as well as logical. Except for sleep disturbance due to
Vietnam dreams, there was no evidence of vegetative signs of
depression or mood disorder. The examiner stated that there
did not appear to be a need for specific psychological
testing. The diagnosis was PTSD, chronic. His global
assessment of functioning (GAF) was 70 at the time of the
examination and in the past year it was also 70.
Analysis
Secondary Service Connection for left hip replacement
The threshold question as to the issue of entitlement to
service connection for a left hip replacement secondary to
the veteran's service-connected residuals of shrapnel wounds
of the left thigh is whether the veteran has presented a
well-grounded claim; that is, one that is plausible. If not,
the appeal must fail and there is no duty to assist him
further in the development of his claim as additional
development would be futile. 38 U.S.C.A. § 5107(a) (West
1991); Murphy v. Derwinski,
1 Vet.App. 78 (1990); Tirpak v. Derwinski, 2 Vet.App. 609
(1992). The Board finds that the veteran's claim is not well
grounded.
Disability which is proximately due to or the result of a
service-connected disease or injury shall be service
connected. When service connection is thus established for a
secondary condition, the secondary condition shall be
considered part of the original condition. 38 C.F.R.
§ 3.310(a).
To sustain a well-grounded claim, the veteran must provide
evidence demonstrating that the claim is plausible; mere
allegation is insufficient. Tirpak v. Derwinski,
2 Vet.App. 609 (1992). A well-grounded claim is a plausible
claim, one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible to satisfy the initial burden of 38 U.S.C.A.
§ 5107(a). Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990).
To be well grounded, a claim must be accompanied by
supportive evidence and such evidence must justify a belief
by a fair and impartial individual that the claim is
plausible. Where the determinative issue involves either
medical etiology or medical diagnosis, competent medical
evidence is required to fulfill the well-grounded claim
requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown,
7 Vet.App. 359 (1995).
When a veteran contends that his service-connected disability
had caused a new disability, he must submit competent medical
evidence of a causal relationship between the two
disabilities to establish a well-grounded claim.
Jones (Wayne L.) v. Brown, 7 Vet.App. 134 (1994).
Service connection is in effect for sequela laceration of the
left thigh and knee, evaluated as noncompensable, since
December 1969.
In this case, the veteran claims that he had a left hip
replacement, determined necessary due to his service-
connected residuals of shell fragment wounds to his left
thigh. The medical records associated with the claims folder
show the veteran complained of left hip and thigh complaints,
more severely beginning in 1991. However, there is no
medical evidence of record that establishes a causal
relationship between the hip replacement necessitated by
necrosis of the left hip and the veteran's service-connected
shell fragment wounds of the left thigh disability. There is
only the veteran's belief that his left hip replacement was
necessitated because of shell fragment wounds of the left
thigh. In a July 1991 VA orthopedic consultation, the
examiner noted that x-rays showed some small shrapnel
fragments about the joint but absolutely not involving the
joint itself. The examiner also indicated that the aseptic
necrosis was in the femoral head. In November 1991, a VA
examiner indicated that in his limited expertise with the
hip, he was unable to tell if the necrosis of the left hip
was related to the shrapnel wounds of the left thigh,
especially at such a late date. He indicated that he was
awaiting a report and recommendations from another VA
examiner. The other VA examiner, who examined the veteran in
September 1991, indicated that there was a partial area of
necrosis in the femoral head and in the surrounding soft
tissue, but the necrosis was not involving the hip joint
proper where there was found small, non-reactive imbedded
shrapnel fragments. This examiner indicated that there was
no actual limitation of movement of the left hip, although
all hip movements were increasingly painful. He also never
attributed the necessity of a hip replacement to inservice
shrapnel wounds of the left thigh. The only person
attributing the left hip replacement to shrapnel wounds
sustained in service is the veteran. The United States Court
of Appeals for Veterans Claims (known as the United States
Court of Veterans Appeals prior to March 1, 1999) (Court) has
held that lay persons cannot provide testimony when an expert
opinion is required. Espiritu v. Derwinski, 2 Vet.App. 492
(1992) (also See Moray v. Brown, 5 Vet.App. 21 (1993) wherein
the Court commented that lay assertions of medical causation
will not suffice initially to establish a well-grounded
claim). The veteran has not met his initial burden under
38 U.S.C.A. § 5107(a) as his belief alone constitutes no more
than mere allegation.
Based on the foregoing, there has been no medical evidence
that clearly shows that there is a causal relationship
between the veteran's left hip replacement and his service-
connected residuals of shrapnel wounds of the left thigh
disability, sufficient to establish a well-grounded claim.
Therefore, service connection for a left hip replacement
secondary to the veteran's service-connected residuals of
shell fragment wounds of the left thigh is not warranted.
Secondary Service Connection for Alcoholism
The veteran claims that service connection is warranted for
alcohol dependence secondary to his service-connected PTSD.
Under applicable criteria, service connection will be granted
for disability resulting from personal injury suffered or
disease contracted in the line of duty not the result of the
veteran's own willful misconduct. 38 U.S.C.A. § 1110. The
simple drinking of alcoholic beverage is not of itself
willful misconduct. The deliberate drinking of a known
poisonous substance or under conditions which would raise a
presumption to that effect will be considered willful
misconduct. If, in the drinking of a beverage to enjoy its
intoxicating effects, intoxication results proximately and
immediately in disability or death, the disability or death
will be considered the result of the person's willful
misconduct. 38 C.F.R. § 3.301 (c)(2). Disability which is
proximately due to or the result of a service-connected
disease or injury shall be service connected. 38 C.F.R.
§ 3.310.
In this claim, the veteran believes that service connection
is warranted for alcohol dependence. The veteran's medical
records reveal the veteran had a drinking problem and had
been counseled to quit drinking. In February 1995, he was
seen on an outpatient treatment basis by VA. At that time,
he stated that he had been in remission from alcohol since
March 1991.
The Board notes that for claims filed after October 31, 1990,
as in this case, service connection may not be granted for
disability or death resulting from abuse of alcohol or drugs.
38 C.F.R. § 3.301(a). Although the veteran claims this
disability is secondary to his service-connected PTSD,
VAOPGCPREC 2-97, indicates, in pertinent part, that the
authority to compensate under the regulation for conditions
secondarily service connected derives from the U.S. Code
sections granting service connection on a direct basis and
there is no authority to grant secondary service connection
apart from the statute. Section 8052 of the Omnibus Budget
Reconciliation Act of 1990 (OBRA 1990) provides that in
claims filed after October 31, 1990, disability resulting
from a veteran's own alcohol or drug abuse cannot be service
connected. VAOPGCPREC 11-96. "Whether service connection
for a substance-abuse disability is claimed under section
3.310(a) on the basis that a service-connected disease or
injury caused the substance-abuse disability or on the basis
that a service-connected disease or injury aggravated the
substance-abuse disability, section 8052 prohibits the
payment of compensation for the substance-abuse disability."
VAOPGCPREC 2-97. Where the law and not the evidence is
dispositive, the claim should be denied or the appeal to the
Board terminated because of the absence of legal merit or the
lack of entitlement under the law. Sabonis v. Brown, 6
Vet.App. 426, 430 (1994). Thus, the law and regulations
preclude a grant of service connection on a secondary basis
for alcohol dependence.
Increased Evaluation for PTSD
The veteran and his representative assert that the veteran's
PTSD is more severe than the current 10 percent evaluation
reflects.
At the outset, it is important to determine if the veteran
has established a well-grounded claim for an increased
evaluation for PTSD, that is, one that is plausible.
38 U.S.C.A. § 5107(a) (West 1991). A claim for an increased
evaluation is a well-grounded claim if the claimant asserts
that a condition for which service connection has been
granted has worsened. Proscelle v. Derwinski, 2 Vet. App.
629, 632 (1992). In this case, the veteran has asserted that
his service-connected PTSD is more severe than currently
evaluated. Therefore, he has established a well-grounded
claim.
Having satisfied this burden, VA has a duty to assist in the
development of facts pertinent to this claim. The Board is
satisfied that all relevant facts in this case have been
properly developed. The veteran was seen in the VA
outpatient treatment clinic in February 1995. In March 1995,
he was seen at the Readjustment Counseling Service. Finally,
he underwent VA psychiatric examination in February 1999.
The record is complete, there is no further duty to assist in
the development of this claim as mandated by 38 U.S.C.A.
§ 5107(a).
Some of the basic facts are not in dispute. Service
connection is in effect for PTSD rated under the provisions
of Diagnostic Code 9411. VA Schedule for Rating
Disabilities, 38 C.F.R. Part 4. Service connection was
established for PTSD by rating decision of August 1987. A
10 percent evaluation was assigned, effective February 1987.
The 10 percent evaluation is still in effect to this date.
Disability evaluations are determined by the application of a
schedule of ratings which is based on the average impairment
of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4.
Separate diagnostic codes identify the various disabilities.
38 C.F.R. § 4.1 requires that each disability be viewed in
relation to its history and that there be emphasis upon the
limitation of activity imposed by the disabling condition.
38 C.F.R. § 4.2 requires that medical reports be interpreted
in light of the whole recorded history, and that each
disability must be considered from the point of view of the
veteran working or seeking work. When there is an
approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter under consideration, the benefit
of the doubt in resolving the issue shall be given to the
claimant. 38 U.S.C.A. § 5107 (West 1991). Furthermore, 38
C.F.R. § 4.7 provides that, where there is a question as to
which of two disability evaluations shall be applied, the
higher evaluation is to be assigned if the disability picture
more nearly approximates the criteria required for that
rating. Otherwise, the lower rating is to be assigned. The
requirements for evaluation of the complete medical history
of the claimant's condition operate to protect claimants
against adverse decisions based on a single, incomplete or
inaccurate report and to enable VA to make a more precise
evaluation of the level of the disability and of any changes
in the condition. Schafrath v. Derwinski, 1 Vet. App. 589
(1991). Moreover, VA has a duty to acknowledge and consider
all regulations which are potentially applicable through the
assertions and issues raised in the record, and to explain
the reasons and bases for its conclusions.
Prior to November 7, 1996, PTSD was evaluated in accordance
with the criteria set forth in 38 C.F.R. § 4.132, Diagnostic
Code 9411. Primarily, it was rated on the basis of the
degree to which psychoneurotic symptoms impaired the
veteran's ability to establish or maintain effective
relationships with people, and the degree to which they
impaired his industrial ability by affecting his reliability,
flexibility and efficiency. If there was no industrial
impairment, a zero percent rating was warranted; "mild"
social and industrial impairment warranted a 10 percent
rating; and "definite" industrial impairment warranted a 30
percent rating.
Effective November 7, 1996, PTSD is to be rated under new
criteria to be codified at 38 C.F.R. § 4.130, Diagnostic Code
9411. See Schedule for Rating Disabilities; Mental
Disorders, 61 Fed. Reg. 52,695 (1996).
Under the new criteria, a zero percent rating is warranted
where PTSD has been diagnosed, but the symptoms are not
severe enough either to interfere with occupational and
social functioning or to require continuous medication. A 10
percent rating is warranted where the disorder is manifested
by occupational and social impairment due to mild or
transient symptoms which decrease work efficiency and the
ability to perform occupational tasks only during periods of
significant stress, or where the symptoms are controlled by
continuous medication. A 30 percent rating is warranted
where the disorder is manifested by occupational and social
impairment with an occasional decrease in work efficiency and
intermittent periods of inability to perform occupational
tasks (although generally functioning satisfactorily, with
routine behavior, self-care, and conversation normal), due to
such symptoms as depressed mood; anxiety; suspiciousness;
panic attacks (weekly or less often); chronic sleep
impairment; and mild memory loss (such as forgetting names,
directions, and recent events).
The Court has held that where the law changes after a claim
has been filed or reopened, but before the administrative or
judicial appeal process has been concluded, the version most
favorable to the appellant will apply unless Congress
provides otherwise. Karnas v. Derwinski, 1 Vet. App. 308
(1990). The veteran's claim for PTSD was initially filed in
June 1995. The law evaluating mental disorders was changed
in November 1996. Therefore, it is necessary that the Board
evaluate the veteran's claim under both the old and new
criteria.
It is important to note that the RO has reviewed the claim
under both criteria and the veteran has been given adequate
notice and the opportunity to submit evidence or argument on
the question. The veteran has also been provided a Statement
of the Case (SOC) and Supplemental Statement of the Case
(SSOC) which provided the veteran with the regulatory
requirements. The Board finds that there is no prejudice to
the veteran in the final adjudication of this claim. Bernard
v. Brown, 4 Vet. App. 384, 393 (1993).
In this claim, the veteran's PTSD has been shown to be no
more than mild in degree. He complains of nightmares,
episodic rage outbursts and anger management problems. Since
1995, he has had no homicidal or suicidal ideation, no
psychotic symptoms, and no psychiatric hospitalization. He
was seen on one occasion on a private basis, and most
recently during a VA examination in February 1999, he
reported that other than periodic flashbacks and sleep
disturbances, there was "nothing else I can think of that is
a problem." He related that he had no psychiatric treatment
or hospitalizations in the past and could think of no
occasion where he felt the need for either. There were no
mood disorders and the examiner found no reason to provide
the veteran with psychological testing. Finally, his GAF
score was noted to be 70 in the past year and 70 at the time
of the examination. This level of functioning on the GAF
scale relates to some mild symptoms, or some difficulty in
social, occupational, or school functioning, but generally
functioning pretty well, and having some meaningful
relationships. This is borne out by the fact that he worked
for his brother for six years prior to the failure of his
brother's business and he presently relates that he has a
girlfriend. The most recent examiner attributes the
veteran's stressors as related to his fixed, limited income,
and the veteran has related his employment problems have been
mostly related to his hip replacement and not any psychiatric
problems that he might have. Based on the foregoing, the
veteran's symptomatology is not reflective of findings
warranting an evaluation higher than his current 10 percent,
which indicates that his PTSD is no more than mild in degree.
Therefore, an evaluation in excess of 10 percent for the
veteran's PTSD is not warranted.
ORDER
Secondary service connection for left hip replacement is
denied. Secondary service connection for alcoholism is
denied. Entitlement to an increased evaluation for PTSD is
denied.
BARBARA B. COPELAND
Member, Board of Veterans' Appeals